Crosby and wife vs. Wendell and others, 6 Paige Ch. 548

The Chancellor. The words used by the testator in this case in limiting the remainder in fee to his son Philip in the State-street house and lot, after the arrival of the youngest child at the age of fourteen, seem to import a contingency; and that it was not the intention of the testator to give Philip the remainder in fee if his mother should not then have re-married. Such would probably be the legal construction if this clause of the will stood alone and was to be Construed without reference to the particular es-tates which are created in this house and lot by other parts of the will.

But when the whole will is taken together, there can be no reasonable doubt that it was the testator’s intention to give to Philip the remainder in fee absolutely, after the termination of the particular estates by the mar-' riage or death of the widow and the expiration of the time during wdiich the rents and profits of the property not devised to the widow were appropriated for the maintenance and support of the minor children.

That which seems to be a contingency or condition upon which the remainder in fee is to. vest in interest is therefore a mere inaccuracy of expression ; and was only intended by the testator to denote the time when such remainder was to vest in possession.

In, other words, the expression “ if my wife Sarah shall then have married,” was merely designed by the testator to exclude a conclusion that he intended his son should have an estate in possession in the State-street house and lot before the expiration of the time for which the use of it had been given to his wife by the previous clause of the will; that is, during the continuance of her life or widowhood, if her children chose to live there with her so long. The case of Brown v. Cutter, (T. Raym. Rep. 427, 2 Show. 152, S. C.) is substantially the same as the present.

In that case the testator devised the estate to his wife for life if she did not marry; but if she married, then he devised the estate immediately to his son Humphrey in tail male, with remainder over to his other sons if Humphrey died without issue. The wife of the testator died unmarried 5 and the question arose between the second son of Humphrey and the daughter of his eldest son, whether Humphrey took an estate in fee after the death of his mother, as heir at law of the testator, or an testate in tail male under the devise.

And the court of king’s bench decided that the wife took an estate during her life or widowhood ; and that Humphrey took an estate tail in remainder, to vest in possession upon the death or marriage of his mother. The like decision was made upon the same will, in the court of common pleas, two or three years after-wards, in the case of Luxford v. Cheeke, (3 Lev. 125.) The intention of the testator is the pole star to guide in the construction of a will; and that intention is not to be ascertained by any particular clause standing by itself, but is to be gathered from the Whole Will taken together.

And where the intention is manifest, if the same is not contrary to some positive or settled rule of law, it must prevail; although to give effect to such intention it may be necessary to depart from the literal meaning or the strict grammatical construction of the words which the testator has used to express his intention. Here the general intention of the testator was to give his wife the use of the State-street house during her life or widowhood, if her children chose to remain with her, even after the youngest child had arrived at the age of fourteen.

And he intended that his son Philip should have the house and lot after the youngest child was fourteen, so soon as her estate durante viduitate therein should have terminated by marriage or otherwise. The same may likewise be said of the testator’s intention as regards the devise to Philip of this" house and lot, and of the other property to all the children, from and immediately ■after the youngest child should arrive at the age of fourteen. He did not intend to make it a condition precedent to the vesting of the estate in either case, that the youngest child should absolutely arrive at the age of fourteen.

But inasmuch as the estate was devised to the executors until that time for the support of the minor children, he intended to exclude the idea that the remainders in fee should vest in possession in any of the children during the existence of the particular estate limited to the executors. He evidently intended, however, that they should take estates in possession as soon as the particular estate previously granted should have determined.

And it does not become material to inquire whether that estate determined by the death of the youngest child a few days after that of the testator, or at the time when the youngest child living attained the age of fourteen. Philip Wendell is, therefore, the sole owner of the State-street house and lot; and the complainant’s bill, so far as it seeks a partition thereof, or any account of the rents and profits received by him, must be dismissed.